Sex etc

International Journal of Law, Policy and the Family 16, (2002), 327–367

D E F IN I N G , AS S I G N IN G A N D D E S IG N I N G SE X P .- L . C H A U * AN D J O N AT H A N H ER R IN G* *

ABSTRACT

This article challenges the distinction the law draws between male and female. It focuses on the legal and medical treatment of intersexual people. Analysing the nature and rate of intersexuality it argues that there is a significant number of people who cannot be described as either male or female and instead exhibit a range of sexual characteristics. Until recently the law and medicine have insisted that intersexual people should be categorized as either male or female. Surgery was performed to ensure that they had the appearance assumed to be the ‘norm’ for a man or woman and the law followed this medical assignment of sex. Over the last couple of years the established medical practice and the legal treatment have been challenged. This article discusses the nature of these challenges and argues that there is a strong case for rejecting the traditional legal and medical approach to intersexual people. Cosmetic surgery on intersexual babies should be delayed until the individual is old enough to be able to choose their own sexual identity, which may be neither male nor female. The insistence that every person must either be male or female is no longer supportable in medical or social terms and a much wider range of sexual identities must be recognized by the law.

1.

I N TR O D U C T I O N

Men are from Mars, Women are from Venus1 declares the best-selling book on popular psychology. As do many similar publications, it purports to record the enormous psychological, biological and social differences between men and women. Indeed a stark distinction between men and women is important to many individuals’ sense of their sexual identity. From the moment of a child’s birth parents are bombarded with the question: Is it a boy or a girl? It is not long afterwards that the law requires parents to answer that question for the purposes of registering the birth of the child.2 From the child’s classification as a boy or girl is likely to follow a whole range of different clothes, names, room decora*Department of Biochemistry and New Hall, University of Cambridge **Exeter College, University of Oxford. I would like to thank a number of anonymous readers for their comments on earlier drafts of this article. Some of these were members of GIRES, but it should not be taken that that organization or its members agree with the contents of this article, indeed I suspect there will be many points on which they do not.  Oxford University Press 2002

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tions and toys. This leads to what Butler has called ‘girling the girl’3 (or ‘boying the boy’) so that the child adopts the behaviour seen as appropriate to his or her sex. The child will then be tied into the power relationships between the genders that feminist scholars have done so much to illuminate. At the heart of this article is an argument that the strict division between male and female is not a stable distinction. It is the condition of intersexuality, which is far from exceptional, that demonstrates the instability of the division and should cause legal systems and medical practice to reconsider whether every person must be classified as either male or female.4 2.

GENDER AND SEX

Before discussing the legal and medical responses to intersexuality it is necessary to analyse the distinction drawn between sex and gender. The traditional view is that while sex encompasses the biological aspects of the development of the reproductive system, gender includes less tangible issues such as the psychology of the individual and the behaviour expected of persons of that sex. Traditionally a distinction is drawn on the basis that sex is seen as a fact, defined by biology, while the definition of gender is constructed by the culture in which an individual lives.5 However, the distinction between sex and gender is not as straightforward as this.6 Delphy has argued that ‘the hierarchical division of humanity into two sexes transforms an anatomical difference (which is itself devoid of social implications) into a relevant distinction for social practice’.7 In other words the ‘biological fact’ of sex is only a ‘fact’ of any interest because of the cultural importance attached to it. After all, any differences between men and women appear insignificant when compared with the differences between humans and other animals.8 Further, gender (the roles expected of men and women) may in part reflect the assumed differences in their bodies. For example, in the past women’s bodies were perceived as weaker and therefore women were thought unsuitable for ‘hard manual labour’. This means that the definition of sex (what makes a male or female body) is intertwined with gender (what behaviour is expected of that body).9 The challenge to the distinction between sex and gender goes further.10 Jackson and Scott argue that biological sex differences are themselves social cultural practices.11 They suggest that nature does not determine what a male or female body is and that the definition of sex is as much a social construct as gender expected behaviour.12 For example, it is interesting to note that some societies around the world do not restrict their understanding of sex to only two sexes: men and women. They have an accepted term for intersexual people who are regarded as neither male nor female.13 Also, some societies are much

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happier with the notion of an individual changing sex at various points in their lives than others.14 It is society, rather than nature, which has created the expectation that there are only two sexes.15 To understand further the way in which intersex conditions challenge the traditional understanding of sex, their medical definition is required. 3.

D E FI N I N G I NT E RS E X C O N D I T I O N S

The development of a fertilized ovum into an individual is a complex process and many factors are involved. Two separate processes can be observed. — Sex determination. This refers to the genetic events that bring about male or female gonadal development (ie the development of testes or ovaries). — Sex differentiation. This refers to all subsequent morphogenetic and physiological events that establish functional sexuality, sexual dimorphism and secondary sexual characteristics. Morphogenesis refers to the embryological processes that lead to the formation of tissues, organs and other structures. Sexual dimorphism means the differences in anatomy and physiology of individuals of the two sexes.

In a typical embryo (or more properly zygote) the sex of the individual is primarily determined by the genes, which reside almost exclusively on the chromosomes. Sex determination of a typical fertile female individual depends on: (i) the absence of the Y-chromosome; (ii) an intact X-chromosome; and (iii) certain non-sex chromosomes (called autosomes).

The determination of a typical fertile male individual depends on: (i) the presence of the Y-chromosome (in particular, the SRY gene); and (ii) a number of other genes residing on the X-chromosome and the autosomes.

Genes on chromosomes dictate gonadal development and thereafter the expected sex differentiation. Research has been able to document the effect of specific genes on sex determination.16 Having established the correct gonads, the embryo proceeds to elaborate the primary sexual organs such as the penis or the vagina, depending on the sex of the individual. In the case of intersexual individuals this complex process can be disrupted, leading to incomplete sex determination and/or differentiation. Some of the ways these processes can be disrupted will be briefly outlined. A. Genetic Mutations in Sex Determination Four particular kinds of genetic mutations in sex determination are as follows:

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(i) Cellular mosaicism This is a very rare condition, where the cells of an individual are derived from two distinct fertilized ova. For example, some individuals (known as 45XO/46XY karyotype) would have some cells which had XY chromosomes and other cells which had only one X chromosome.17 (ii) Disruptions at the chromosomal level There are various forms of genetic ‘errors’ involving whole chromosomes; these are known as karyotypic errors. For example, the presence of only one X-chromosome in females can lead to gonadal dysgenesis (ie the gonads do not develop or do so atypically) and hence incomplete sex determination.18 A 47XXY karyotype, which has an incidence of about 1 in 500 males in the population, gives rise to Klinefelter’s syndrome.19 (iii) Disruptions caused by gene translocations When normal genes are translocated to the wrong chromosome, sexual determination can become abnormal. For example, if a gene for female sex determination on the X-chromosome is translocated to the Y-chromosome, or vice versa, this can lead to sex-reversed conditions with XY-females and XX-males.20 Some of these XX-males are true hermaphrodites,21 possessing both testicular and ovarian tissue.22 Some of these gene translocations are compounded by other disorders.23 (iv) Gene mutation in sex determination This describes the situation where the genes are on the correct chromosome, but the gene sequence has undergone either spontaneous or inherited mutation. This can cause an intersex condition. The following provide examples of these: (a) A large number of males with SRY gene mutations have been documented This can lead to XY-males but with complete or partial gonadal dysgenesis (development).24 (b) In the female, gene deletions on the X-chromosome have been documented to cause ovarian failure.25 (c) The mutation of the DAX-1 gene that resides on the X-chromosome can lead to atypical development of gonads26 or even sex reversal.27 (d) Autosomal genes are also essential in sex determination. In particular the WT1 gene is implicated in early gonadal development. Mutations of this gene can also lead to complete or partial gonadal dysgenesis.28 (e) Another important gene lies on chromosome 15. This gene ensures the production of an enzyme (cytochrome P-450 aromatase) which causes the conversion of androgens to estrogens. Mutation of this gene can lead to non-functional ovaries.29

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B. Genetic Mutations in Sex Differentiation In the course of sex differentiation genetic mutations can lead to intersex conditions. For example, in males a condition known as androgen insensitivity can feature testicular atrophy, absence of uterus, cervix and fallopian tubes, but the presence of a short vagina and breast development. In the males this condition can arise even though androgen secretion is normal if the androgen receptor is abnormal.30 This condition is also called ‘pseudo-hermaphroditism’; the severe form of this abnormality also goes under the name of ‘complete testicular feminisation’, while the milder forms are called ‘incomplete testicular feminisation’.31 These individuals are XY-males chromosomally, but they have some form of female primary sexual organs and female secondary sexual characteristics. Another form of sex differentiation abnormality is the persistence of muellerian derivatives in males, with the functional testes not connected to the male excretory ducts, and the presence of elements of the female reproductive tract such as the cervix and uterine wall.32 The female reproductive organs can also be abnormal. For example, in congenital adrenal hyperplasia, one of the enzymes for the production of cortisone can be defective, leading to increased levels of adrenal androgens. This can cause a woman to adopt characteristics traditionally seen as male to varying degrees.33 In addition to congenital adrenalhyperplasia, other abnormalities have been reported: septa can be found in the vagina, the vagina can be absent, the labia can be abnormally fused, the cervix can be absent, the uterus can be of abnormal shape, has a septum or be duplicated.34 Some of these morphological mutations have been mapped to a specific genetic mutations; for example, deletion of part of chromosome 4 is correlated with absent uterus.35 An individual with any of the conditions described above may then be classed as intersex. It is important to appreciate that the label ‘intersex’ in fact covers a wide range of medical conditions in which, in different ways, sex differentiation or sex determination has not taken place as expected What links intersexual individuals is they cannot be categorized unequivocally as either male or female, using the traditional definitions of these terms. It should be noted that intersexuality is not unique to humanity. The phenomenon has been observed in other species including fish36 and mammals.37 In fact intersexuality can be seen as playing an important role in the evolutionary process or natural selection.38 In all species, there is random variation of the configuration and characteristics of the genes (the genotype) leading to variation in observed characteristics (the phenotype) of the individual. This variation means that, if there is a change in the external environment, although some indi-

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viduals in the species may not be able to survive, others may be able to survive and reproduce, thanks to a slightly different genotype and phenotype. If there were no variation at all, then when the external environment changes, the species could become very vulnerable to extinction. The variation in the genotype and hence phenotype is largely random, so whilst some variations may confer survival and reproductive advantages in a changed external environment, other variations may be harmful to the survival of the individual. Seen from the perspective of the species, this phenomenon of random variation in sexual structures, though sometimes deleterious to particular individuals, is essential to the survival of the species. Whether intersexuality may confer some survival advantage to humans under certain conditions is still unclear, though, in some species, it has already been demonstrated that intersexuality is linked to the environment.39 Thus intersexuality in humans, being a variation that may or may not have survival advantages, could be viewed in the same light as variation in hair colour or body height. From this discussion three crucial points should be emphasized. First, it is not possible to classify everyone as clearly male or female.40 It is not that it is hard to find out whether an intersexual person is male and female, but rather that even knowing everything there is to know about them, they do not fall into the accepted description of male or female. Second, that a simple solution of saying that there are three sexes:41 male, female and intersex is over-simplistic. The range of intersex conditions is too large and diverse for them to be lumped together in one classification. It would even be a simplification to suggest that people can be placed on a scale of maleness and femaleness, because in some respects a person may be classified as male and in other aspects female. A person may therefore be at one point in such a scale in respect of chromosomes and at another point in relation to breast development. Third, rather than seeing intersexuality as an illness,42 it should be regarded as a natural aspect of humanity and indeed in other animals has proved essential to survival. We will be returning to these points later in this article. C. Rate of Intersexuality It is important to appreciate that the condition of intersex is far from uncommon. The exact rate of intersexuality cannot be stated with certainty. This is because there is no accepted definition of intersexuality and because until recently it has been common not to disclose the intersex condition of a child, for fear of causing distress to the parents. It should also be noted that the rate of some intersex conditions varies in different parts of the world.43 With these caveats the following can give some indication of the rate of intersex people. One recent study has estimated ‘conservatively’ that

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between one and two newborn babies per thousand require ‘corrective genital surgery’ as a result of intersex conditions.44 The same study suggested that 17 babies per thousand born could be labelled intersex, even if not to such an extent as to require surgery.45 Other studies have suggested higher and lower rates: one suggested that in only one in 1500 live births is it not possible to tell a child’s sex by external genitalia,46 but another argued that four per cent of the world’s population should be classified as intersexed.47 D. Transsexual and Intersexual People There is much dispute over whether transsexualism should be regarded as a kind of intersex condition. The traditional response is that a clear distinction can be drawn. For example, Butler Sloss LJ in Bellinger v Bellinger48 emphasized a distinction in these terms: An inter-sexed person is someone whose biological criteria at birth are not congruent, and is, therefore of uncertain sex and . . . would be assigned to the sex the medical profession considered most appropriate for psychological reasons rather than biological reasons. By contrast the transsexual would be born with congruent biological criteria and would be appropriately assigned to one sex, but would become seriously discontented with that ‘label’ as he/she grew up.

It should be noted that many transsexual people would regard the term ‘seriously discontented’ as a gross understatement. It should also be stressed that the use of the term ‘appropriately assigned’ rather than ‘correctly assigned’ is a careful choice of phrase. Transsexual people argue that they are not changing sex, but rather amending their bodies to reflect their true sex. In recent years some commentators have argued that transsexual and intersexual people should be classified together. Barlow, for example, argues that the term transsexuals in ‘its widest sense’ includes intersexuals,49 while the Report of the Interdepartmental Working Group on Transsexual People argues that transsexualism is an example of intersexuality. Yet others prefer the term transgenderism which has been used to describe all those who do not conform to the expected roles of either male or female and would therefore include intersexual and transexual people. The argument for classifying transexualism as a kind of intersex condition is evidence that at birth an individual’s sexual identity is fixed in the brain.50 In other words at birth the individual’s brain and genitals are not congruent and this is as much an intersex condition as a person whose gonads and genitals are not congruent. The extent to which sexual identity is determined by the brain is disputed.51 Without further research it is not possible to decide between the two views and it is not necessary for the purpose of this article to

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resolve the disagreement. However, it is worth noting that recently in Re Kevin (validity of marriage of transsexual)52 Justice Chisholm in the Family Court of Australia, held that on the balance of probabilities ‘the characteristics of transsexuals are as much ‘‘biological’’ as those of people thought of as inter-sex’.53 It should also be added that although there are similarities in the theoretical issues the conditions raise, in that both challenge orthodox assumptions about sex and gender, there are some important differences. It can be argued that many transsexual people are willing to accept the clear distinction between male and female. What they are seeking to do is to establish recognition that they are of the sex with which they identify. By contrast an intersexual person may challenge the requirement that everyone must belong to one of two sexes. Some intersexual people do not wish to be classified as either male or female and indeed advocate the abolition of that distinction. Indeed some commentators54 have criticized transsexual people (or the medical response to transsexualism) for ‘reinforcing’ the traditional distinction between men and women by insisting on surgery so that they can appear as the norm for their chosen sex. This, it could be said, works against the efforts of some intersex people who wish to blur or remove the distinction between male and female. In fact we strongly reject these ‘criticisms’ of transsexual people, not least because they appear to be based on a highly stylized image of a transsexual. However, the point is made that the agendas of transsexual and intersexual people could, in theory, compete. 4.

T H E T R A D I T I O N A L M ED I CA L P R A C TI C E I N RE S P ON S E T O

I N T E R S E X UA L I T Y

The medical response to intersexuality has changed through time, partly as a result of cultural understandings of sex and partly as a result of technological developments.55 For example, a crucial change in the treatment of intersexuality occurred when surgical techniques were developed that enabled doctors to change the appearance of a baby’s external genitalia to match the traditional male or female appearance.56 Before such technology it was not possible to design intersexual babies’ bodies to meet a norm. During the Renaissance and Middle Ages an intersexual person was permitted on entering adulthood to choose whether to act as a male or female, although once that choice was made it could not be reversed.57 At the start of the twentieth century the orthodox approach to the intersexual person was that at birth the doctor should discover the ‘true sex’ of the child. This was seen as a matter of medical expertise, which could be ascertained by a thorough medical examination of the patient. In more recent years the general medical opinion has involved a shift

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from seeking to discover the true sex, to determining the best sex for the child.58 This is still regarded as a matter of medical expertise. But, rather than ascertaining a present fact, it involves a prediction into the future: which sex assignation will best promote the welfare of the individual? From the 1960s until the late 1990s the medical approach to intersexual individuals was dominated by the work of John Money.59 He argued that sexual identity is not a matter of biology, but is rather a learned process.60 That is that any child could be taught to have either a male or female identity, regardless of any biological ‘fact’. In other words in the case of intersexual people the assignment of sex was relatively unimportant, as long as the child was raised clearly as male or female. His argument was (surprisingly) substantially built on a study of one patient. The study of this patient is now widely known as the Joan/John case. A boy’s penis was accidentally removed in the course of a circumcision operation that went wrong. Money, in consultation with the parents, advised that the baby be brought up as a girl.61 Surgery was performed so that the baby appeared to be female. Money argued that as long as the child was raised as a girl and not told about her medical history she would successfully live as a woman. He reported that this indeed occurred and that the child (Joan) had grown up as a normal girl. Even though this case did not involve a true intersexual (at birth, the child’s sex was clearly male) Money used it to form the basis of widely accepted recommendations for treating intersex children.62 He advocated that a doctor should decide the best sex of an intersexual child as early as possible (and by 24 months at the very latest). Having assigned the sex, surgery should be carried out so that the child’s outward appearance matched the assigned sex and that the child be raised in accordance with that sex. It was crucial, he argued, that medical practice should ensure that doubts over the child’s sexual identity did not persist. This, he thought, could cause the child severe psychological harm. In fact he recommended that the individual should never be told their medical history.63 Parents should be told that the child’s sexual organs were ‘unfinished’ and that any surgery was just completing their natural development.64 As will be appreciated from our description of intersexuality above this was untrue, as Money appreciated, but it was seen as a way of helping the parents raise the child in line with assigned sex. For decades Money’s approach to intersexual children was regarded as the standard approach. As late as 1996 Money’s approach was still followed by the American Academy of Paediatrics, which published these guidelines: Research on children with ambiguous genitalia has shown that sexual identity is a function of social learning through differential responses of multiple indi-

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viduals in the environment. For example, children whose genetic sexes are not clearly reflected in external genitalia (ie, hermaphroditism) can be raised successfully as members of either sex if the process begins before the age of 212 years. Therefore, a person’s sexual body image is largely a function of socialization.65

Despite the pre-eminence of his approach for decades, Money’s views have come under increasing challenge. There have been five particular sources of challenge. A. Further Research into Joan/John Further research on the child who was key to Money’s argument revealed that his claim that Joan had grown as a successful girl was inaccurate.66 It was discovered that in fact later in life Joan had rejected her sex and lived as a man (John). He was married with an adopted child.67 Further John was profoundly distressed by the way he had been treated during his childhood and adolescence. The eventual outcome for this patient indicated that it could not be assumed that sex assignment, rapid surgery, and secrecy as to the biological truth would resolve all problems. Following the discovery of the eventual outcome in the Joan/John case there was a major re-evaluation of Money’s opinions and further research was carried out into the long-term consequence for intersexual people of medical intervention at birth. B. Research into Intersexual People Who Did Not Have Surgery There have been a number of recent studies of intersexual individuals who did not receive surgery but would have done had the normal procedures been followed. One study involved men with ‘micros penises’ who, had the usual procedures been followed, would have had their penises removed shortly after birth and been raised as women. The sample was small (only 20), but all of the individuals felt male and were sexually functional.68 Only six of the 20 reported being teased about their appearance. Other small-scale studies also found high levels of psychological well-being among those who were not subjected to surgery, but who would have been had normal practice been followed.69 A Rotterdam research group performed a long-term study of 59 intersex children,70 most of whom did not have sex reassignment surgery, and they found only 13 per cent of them had a ‘gender identity disorder’.71 C. Intersexual People’s Complaints about their Surgery A third challenge to Money’s approach has come from the growth in pressure groups of adult intersexual people objecting to the procedures performed upon them as babies or young children. Such groups (most notably the Intersexual Society of North America (ISNA)) argue that intersexuals should have been able to decide for themselves what sur-

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gery, if any, they wished to have carried out. Some intersexual people suggest that they were assigned the wrong sex, but many of those involved in political campaigning are happy to regard themselves as not falling into either of the traditional categories of male or female, and would prefer the description ‘intersex’.72 Some intersexual people have argued that the performance of surgery was a crude attempt to force them into the appearance of being male or female.73 The surgery was unnecessary and not consented to by them. Indeed claims have been made that although the surgery may have made them appear to look more like a man or a woman the surgery has in fact led to a loss or diminishment in sexual sensation and/or a loss of fertility.74 Some intersexual activists have even protested and picketed outside hospitals.75 It should be added that Money76 claims that groups such as ISNA are militant and not representative of the majority of intersexuals who are content with their treatment. However, because his approach is based on keeping the condition secret, it is not possible to assess the validity of these claims in respect of his patients. D. Claims that Money’s Approach was Phallo-centric There have been concerns that the basis on which doctors assigned sex is unduly focused on the size of the child’s penis or clitoris.77 In a sense this is understandable because it is the size of genitals which are likely to be the first indication to a paediatrician that there are question marks over the sex assignment of a child. It would be extremely expensive to carry out an ultrasonography on every child, which would be necessary for the detection of every child with an intersex condition. The traditional approach to deciding the assignation of sex was summarized by Money, ‘ ‘‘Too small now, too small later’’ is a useful working rule with regard to construction or reconstruction of a penis.’78 In the United States, the ‘locker room appearance test’ was seen as of particular importance. The doctors would imagine the child when older showering with other children: would the child be accepted by the others as a boy or girl or would they be teased?79 The accepted approach was that a penis of less that 2 cm should be removed, as should a clitoris greater than 1 cm.80 It was felt that boys with such short penises would suffer from low self-esteem81 and that girls with a large clitoris would feel unfeminine.82 The emphasis on size of the penis or clitoris, rather than in which sex the individual could find sexual satisfaction or achieve fertility, is controversial. It used to be assumed that if there was any doubt over the correct assignation of sex it was better to choose female rather than male.83 In other words an ‘inadequate’ penis would lead to classification as a woman. Typical of the traditional approach is the following suggestion in a medical textbook: ‘If the subject has an inadequate phallus, the individual should be reared as female, regardless of the

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results of diagnostic tests.’84 It is not surprising that feminist scholars have been quick to point to this as an example of women being the ‘other’; ‘the non-male’; and of the close identification of the male with the penis.85 As Dreger argues ‘much is expected of penises, especially by paediatric urologists, and very little of vaginas’.86 In the name of achieving an appearance that was close to the norm for a man or a woman intersexual people’s capacity for sexual pleasure was destroyed or lessened. Such arguments strongly challenge the pre-eminence given to penis size in the assignation of sex under the traditional approach. Even on its own terms the focus on penis size has come under challenge because the assumptions of penile growth on which the decisions have been based have been unduly low, by the most recent research.87 Indeed the standard definition of a penis has been challenged after, using it, it was found that in one sample only 55 per cent of men had a ‘normal’ penis.88 In any event the assumption that surgery on genitals would ensure confidence in sexual identity seems misplaced. All surgery does is to change one aspect of the sexual ambiguity: the genitalia. Of course, the genitals are not visible most of the time and, when they are, are only to a very few people. All sorts of other factors are key to sexual identity. It is interesting to note that in fact some of the popular images of ‘perfect femininity’ may not be purely feminine. For example there are (according to Dreger) persistent rumours that female high-fashion models are testicularly feminized males with long limbs, rounded hips and breasts, and are tall.89 E. Intersex Conditions Challenges Gender Differences Some commentators have argued that the response of the law and medicine to those with intersex conditions and the emphasis on ensuring that children are either male or female emphasize and re-enforce the expected social roles of male and female. Anne Fausto-Sterling has written: Why should we care if there are individuals whose ‘natural biological equipment’ enables them to have sex ‘naturally’ with both men and women? Why must we amputate or surgically hide that ‘offending shaft’ found on an especially large clitoris? The answer: to maintain gender divisions, we must control those bodies which are so unruly as to blur the borders. Since intersexuals quite literally embody both sexes, they weaken claims about sexual difference.90

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T H E N E W A P P R O A CH T O T H E M E D I C A L T R EA T M E N T OF

I N T E R S E X UA L I T Y

These concerns about Money’s approach have led to a shift in attitudes amongst many in the medical community who work in this area. There

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is increasing acceptance of a perspective which does not see intersexuals as an abnormality: people who are ‘ill’ and need to be ‘mended’ by surgery in order to ensure that they can live as male or female.91 Rather, that an intersexual person is at most a variation from the standard (just as an unusual hair colour may be).92 The shift in medical practice and understanding has led to the setting up of the North American Task Force on Intersexuality which first convened October 1999.93 Its aim is to move away from the Money approach and develop a more sensitive response to intersexual babies. It would, however, be quite wrong to suggest that there is now consensus on the appropriate medical treatment of intersexuals. There are four issues that are still in dispute: 1. The time of surgery There is general acceptance that some intersex conditions require immediate surgery to ensure the medical well-being of the patient. It is relatively uncontroversial that doctors should perform medical procedures necessary for clinical reasons (for example, to repair any defects in the genito-urinary system so that physiological functions can be carried out normally).94 What is in dispute are operations which are essentially cosmetic: performed just so that the child will appear to accord with one sex or the other. Three main views could be taken. (i) The traditional Money view, as outlined above, would be that surgery should take place as soon as possible after the birth of the child so that a clear sexual identity could be established.95 (ii) There are some who argue that surgery should be avoided at birth and should be delayed96 until the child is sufficiently mature to decide for themselves what surgery, if any, should be performed.97 This gives the individual the maximum opportunity to decide what sexual identity they wish to adopt and what appearance they wish to have. This would include the option of living as neither male nor female. (iii) Others argue that surgery should be delayed until the child exhibits clear behaviour in line with one sex, even if at that point the child is not yet mature enough to make a reasoned decision about their sexual identity.98 Adherents of this view fear that waiting until the child’s teenage years when they will then be competent to make the decision themselves will involve the teenager in surgery which at that age may be particularly traumatic. On the other hand an argument can be made that if the child has developed a clear gender identity then there is no urgent justification for the surgery whose main purpose is to establish such an identity.99

As yet there is no consensus as to which of these views should be taken. One of the leading experts in the UK, Professor Green, whose research was quoted by the Court of Appeal in Bellinger v Bellinger,100 indicated that the ‘wait and see approach’ was now the most popular within the medical community in the UK. His comments do not reveal whether this is a preference for option (ii) or (iii), above.

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2. The raising of children If it is accepted that this cosmetic surgery should not be performed at birth, the question then is how the child should be raised. Two main approaches have been proposed. (i) One school of thought is that even if surgery is not performed the child should be raised in line with one sex or the other.101 Amongst those in this school, opinions differ as to how the sex should be chosen.102 (ii) Another school of thought is that the child should raised as neither male nor female, but as intersex, thereby giving them the maximum opportunity to decide once they are older whether they wish to live as male, female or neither of these.

Those in favour of approach (i) argue that approach (ii) will lead to psychological harm to the child. Teasing, lack of clear role models, and lack of social identity will lead to some confusion for a child living in our society, which is so dominated by sexual differentiation. Those in favour of approach (ii) argue that it leaves the choice of which sex, if any, is adopted by the individual to their own choice, rather than being (in effect) imposed by their rearing. Further, to raise the child as intersex is to raise the child in their true identity: to raise the child as a boy or a girl would be to perpetuate the myth that each person must be raised as male or female. As Warne points out, in less developed countries where surgery is unavailable for intersexual children and children are raised as intersex, the children and their parents do not appear to suffer greatly, although he admits the research in this area is limited.103 Whichever perspective is taken there is widespread agreement that parents and children need a high level of psychological support,104 which until very recently has often been lacking.105 Whatever the ideal for the child the position of the parents must be emphasized. There is some evidence that parents would find it difficult to raise a child as intersex.106 Other parents may insist on the child being raised as a boy or a girl. It may be that in some cultures parents will have a strong preference for the child to be a boy.107 If the parents are adamant about this their wishes will have to be respected, unless the drastic step of taking the child into care is taken. Of course, those who maintain the Money approach argue that the child (and even its parents) should not be told about the intersex condition.108 This is very much a minority view. Not least because it is likely that the child will discover their intersex status at some point during their life and it would be extremely harmful for the child to discover this, say, in their early teens.109 Further some intersex conditions can be linked with medical problems which may require early intervention for more effective treatment.110 3. The nature of any surgery If it is felt necessary to perform surgery a strong case can be made for intervention to follow two key principles.

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(i) The surgery should be the minimal thought necessary for the well-being of the child or the patient. (ii) Where possible the surgery should be reversible.111 The benefit of this would be that if later in life individuals wished to reverse the decision made during their childhood this can more easily be done. Alternatively if better reconstruction methods were available in the future, the old reconstruction could be undone, and the new methods applied.

With these principles adopted the dispute over the timing of the surgery is perhaps less fierce, because if, as a teenager the child forms a strong attachment to their original intersex condition or a different sexual identity, surgery may be readily available to give effect to this choice. Having considered the changing medical response to intersexual individuals it is now necessary to consider the legal definition of sex. 6.

THE LEGAL DEFINITION OF SEX

As the law has sought to equalize the position of men and women, there are now relatively few situations in which it is necessary for a court to determine someone’s sex and so rarely have the courts had to address the definition of male and female.112 Further, many intersexual people, following surgical interference at birth, will appear to belong to one sex or the other and will not have been told about the ambiguity that existed at their birth. It is, therefore, not surprising that an intersexual person’s sexual identity is rarely challenged in the courts. One of the most significant areas where it is necessary to distinguish male and female is the law on marriage and it is in this area that most of the detailed discussion on the legal definition of sex has taken place. A. The Legal Definition of Sex in England and Wales Section 11(c) of the Matrimonial Causes Act 1973 makes it clear that only a man and woman may marry and any purported marriage entered into by two people of the same sex would be void. The statute does not provide any definition of who is a man or a woman and the question has been left to the courts to answer.113 W v W (Nullity: Gender) The legal position of intersexual people has recently been reconsidered by Charles J in W v W (Nullity: Gender)114 who was required to consider the validity of a marriage between a male applicant and the respondent. His judgement has since been approved by the Court of Appeal in Bellinger v Bellinger115 and can therefore be regarded as authoritative. The intersexual respondent in W v W was born of indeterminate sex. The child’s father believed that the child should be a boy and was raised as such. The respondent was subsequently adopted by the parents’ cousin. However, from an early age the respondent preferred girls’

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clothes and by the age of 14 she had ‘noticeable breasts and female body shape and had developed a romantic interest in boys.’116 The adoptive father was concerned at this and persuaded a doctor to give the respondent testosterone injections (against the respondent’s will) in an effort to reinforce the male assignation of sex. The injections had a limited effect and the respondent ran away from home when the father threatened to impose further injections and even surgery to reduce the size of the respondent’s breasts. The respondent then lived as a woman and by the age of 40 had gender reassignment surgery. She subsequently married the applicant. The issue was whether the marriage was void because the parties were not respectively male and female.117 This raised the question of whether the respondent was male or female. Before discussing the judgment it should be added that the facts of this case are but one example of the tragic consequences that can flow from forcing a person into one sex at birth. Charles J focused his attention on the leading case on the definition of sex: Corbett v Corbett (otherwise Ashley).118 In that case Ormrod J had to decide the sex of a transsexual person. In Corbett the applicant had been born a man, but as an adult underwent a surgical operation removing her ‘male organs’ and creating the ‘female organs’. The issue was whether the applicant could be regarded as a man or a woman. Key to Ormrod J’s reasoning were four points. 1. 2. 3. 4.

That sex is ‘fixed at birth (at the latest) and cannot be changed, either by the natural development of organs of the opposite sex, or by medical or surgical means’.119 Gonodal, chromosomal and genital tests at birth determined the sex. These terms will be defined later. He explicitly rejected an argument that psychological sex was relevant for the law’s definition of sex.120 In determining a person’s sex for the purpose of marriage the capacity for heterosexual intercourse with their partner was crucial. This was because he saw heterosexual intercourse as key to the understanding of marriage. Certainty as to sex was crucial for the law. The law should not permit people to flit between one sex and the other; nor should there be people about whom the law cannot produce a clear answer as to whether they are male or female. By denying the relevance of psychological attachment to a sex and focusing on the biological ‘facts’ at birth he was able to ensure a legal definition of sex that was certain and fixed.

It is perhaps remarkable that, in spite of the medical and social advances in the past three decades, Corbett, a first instance decision, has been able to retain its position as a leading case on the definition of sex, not just in the UK, but around the world.121 Its persistence is in part due to the expertise brought to the case by Ormrod J himself (he was medically qualified), but also the certainty, so beloved of lawyers, that the test appeared to provide.

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Charles J in W v W started by applying the Corbett test. He found that the respondent’s sex was not resolved by considering her chromosomal, gonadal and genital factors. The respondent had ‘partial androgen insensitivity syndrome’. Androgen is a hormone and, like most hormones, needs to bind to a receptor to exert its effect on target cells in the body. If the androgen receptor has undergone a mutation and its functioning is changed, androgen will no longer be able to exert its effects. Those individuals with this syndrome are XY-males chromosomally, but their primary sexual organs and secondary sexual characteristics have female elements. For example, depending on the degree of severity, individuals suffering from partial androgen insensitivity may not be able to carry out spermatogenesis (ie produce sperm), they may develop breasts and have female hair-growth pattern.122 Charles J concluded that the respondent was chromosomally male, gonadally intersex, genitally intersex, and psychologically female. This meant that Charles J was left with the job of determining how to define sex in a case where the Corbett test did not produce a clear answer. Ormrod J in Corbett had acknowledged that his test would not provide an assignation of sex for some intersexual people and left such cases to another day, although he hinted that the genital factor should be the determining criterion in a case of doubt. Charles J did not take up this suggestion. He proposed that in cases where the Corbett factors did not all point in one direction all of the following factors should be considered: (i) chromosomal factors; (ii) gonadal factors (ie presence or absence of testes or ovaries); (iii) genital factors (including internal sex organs); (iv) psychological factors; (v) hormonal factors, and (vi) secondary sexual characteristics (such as distribution of hair, breast development, physique etc).123

These factors require some elaboration. (i) Chromosomal sex is the presence of the XY chromosomes in males and the presence of XX chromosomes in females, although XX males and XY females do exist. (ii) By gonadal sex is meant the state of the gonads: the testes in the case of men and the ovaries in the case of women. (iii) The genital sex is defined by the state of the primary sexual organs, namely the penis, the scrotum, and the tubular system linked to the testes in the male; or the vagina, the cervix, the uterus and the fallopian tubes in the female. (iv) Psychological ‘sex’ is much more difficult to define; it encompasses what the individual feels himself/herself to be. To what extent these feelings are the result of structures in the brain or the result of social/cultural factors is a matter of debate.

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(v) The hormonal factors, as explained earlier, are ultimately an expression of the chromosomal factors, because almost all genes are found on the chromosomes. The hormonal factors are important in sex determination and in sex differentiation; they influence how genes are expressed to give rise to gonads, primary sexual organs and secondary sexual characteristics. In fact it could be argued that as hormonal factors are so dependent on chromosomal factors there is little point in adding them as a separate criterion. (vi) By secondary sexual characteristics are meant those characteristics not directly related to reproduction, but which are commonly different in males and females; for example, breast development, hair growth patterns or fat deposition patterns.

Charles J gave no indication of how to weigh the six factors when they point in different directions. It seems it is not simply a case of seeing whether the majority of these factors lie on one side of the line or another. Rather it is a matter for the judge’s discretion, looking at all of these factors. Although he does not say so explicitly, we suggest that where these factors point in conflicting directions, the individual’s psychological attachment to one sex or the other is likely to be regarded as the crucial factor. On the facts of W v W Charles J found that the respondent was female. It is important to reiterate the limitation on the expanded test in W v W. It only applies if the Corbett test is inconclusive. If the genital, chromosomal and gonadal factors all clearly point in the direction of one sex that concludes the issue for legal purposes and it is impermissible to consider the psychological or secondary sexual characteristics. The case therefore does not directly cast any doubt on the present law relating to transsexual people set out in Corbett,124 recently confirmed (albeit by a majority) by the Court of Appeal in Bellinger. However, as will be argued below, the decision in W v W undermines some of the key elements of Corbett, rendering the Corbett test profoundly unstable. B. Other Areas of the Law Where Sex is a Relevant Characteristic We have already discussed the definition of sex in relation to marriage. The ability to marry has wider significance than the regulation of intimate relationships; it also has significance on issues such as entitlement under pension schemes and immigration. The definition of sex is also relevant in other areas of the law. The criminal law draws a distinction between men and women in relation to few crimes, mainly in relation to sexual offences.125 For example, Section 2 Sexual Offences Act 1956 states: ‘It is an offence for a person to procure a woman, by threats or intimidation, to have sexual intercourse in any part of the world’. There is no equivalent offence involving men. The most significant case discussing the definition of men and women in the context of the criminal law is Tan.126 Discussing Section 30

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of the Sexual Offences Act 1956, it was held that the Corbett test was to be used for the determining sex for that offence. This was because it was desirable for sex to have a consistent meaning in the legal context. It seems therefore that for the few criminal offences that do distinguish between men and women the Corbett test will be relied upon to define sex; and presumably in the case of intersexual people the W v W (Nullity) test will be relied upon. However, it should be noted that a criminal court might be willing to depart from Corbett where an absurdity would result.127 In R v Matthews128 the defendant was charged with rape of a male-tofemale transsexual person. The defendant sought to argue that following Corbett the intercourse he had engaged in could not be described as vaginal or anal intercourse. This argument was, quite properly, rejected by Hooper J, who accepted that the victim’s vagina was a vagina in the eyes of the law. The willingness to depart from Corbett where the result would otherwise be absurd demonstrates that the Corbett test cannot be said to represent some ultimate legal truth. C. Official Documents and the Definition of Sex In the UK the question of what sex should be placed on an official document rarely arises before the court and is usually left to the discretion of relevant officials. Most of the discussion has been in relation to transsexual people. The birth certificate is regarded as an historical record of the sex with which the person is born. This means the courts have held that transsexuals cannot change the sex on their birth certificate because the certificate accurately reflects their sex at birth. By contrast other documents that are documents of identity, such as a passport, should reflect the individual’s current identity. So, if the person appears and lives as a woman, the identification documents should reflect that appearance. Indeed not to allow an identification document to represent an individual’s sexual identity probably will be held to infringe their right to respect for their private life under Article 8 of the European Convention on Human Rights, protected under the Human Rights Act 1998.129 Although transsexual people have had difficulty with birth certificates it seems that intersexuals have received more flexible treatment. According to a report published by the Home Office: As regards civil registration, government has for many years accepted the need for flexibility in difficult circumstances. The issue of a birth certificate for an intersex child can be delayed, or at a later stage it can be amended.130

Thus the position for an intersexual person has been, in a way, easier than for transsexual people. However, there is no evidence of acceptance of ‘intersex’ or any other definition as acceptable for a birth certificate. In relation to formal documents the state is willing to wait but the individual must still be either male or female.

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D. The Treatment of Intersexual People in Other Jurisdictions There have been very few cases in which the position of intersexuals has been discussed. In Australia the leading case is In Marriage of C and D (falsely called C)131 where the husband had an XX chromosomal pattern and had male and female biological characteristics. The couple had been married for 12 years and raised two children (although the husband was not their genetic father). The wife was granted nullity on the basis of that at the time of the marriage she was mistaken as to the identity of her husband: she believed him to be male whereas in fact he was neither male nor female. The effect of the decision, as noted by Charles J in W v W, was that the husband was unable to enter a legal marriage with anyone. The case has been widely criticized and it is unlikely that it would be followed.132 In one American case in 1968, In re Anonymous,133 there was an application for a court order to change the birth certificate of an intersexual person. The court considered and rejected an argument that there was a third sex into which intersexuals fell.134 As will be discussed shortly the Colombian High Courts have recently issued two important rulings on the correct medical treatment of intersexual babies. Most common law jurisdictions have accepted the Corbett test for defining sex at common law,135 although some have reversed its effect in relation to transsexual people through legislation.136 However three cases which have rejected the Corbett approach deserve some consideration. In M T v J T137 the New Jersey (USA) Court was willing to accept that Corbett should not be followed. The appellate court held that following sex reassignment surgery the postoperative transsexual has full capacity to function sexually as male or female, and therefore there was no legal, social or public policy reason to prevent the law recognizing their ‘new’ sex. Particular weight was placed on the selfidentification of the individual.138 This reasoning does not in any way challenge the view that everyone should be male or female and does not provide an answer to the law’s approaches to intersexuals. The New Zealand High Court in Wellington in Attorney-General v Otahuhu Family Court139 recognized a person’s self-defined sex after a ‘sexchange’ operation. Ellis J argued: There is no social advantage in the law not recognising the validity of the marriage in the sex of reassignment. It would merely confirm the factual reality . . . I can see no socially adverse defects from allowing such transsexuals to marry in their adopted sex, I cannot see any harm to others, children in particular, that is not properly prescribed and manageable in accordance with the existing framework of the law.140

In Re Kevin (validity of marriage of transsexual)141 Justice Chisholm in the Family Court of Australia, in an impressively argued judgement, declined to follow Corbett and upheld the validity of a marriage between a woman and a female to male transsexual person.

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We now seek to criticize the present law’s approach to the definition of sex, with particular focus on intersexual people. First, it will be argued that the law is internally inconsistent, with W v W being inconsistent with Corbett. Second, it will be argued that the law’s approach is inconsistent with the law’s approach to children’s rights and the right to bodily integrity. Third, it will be argued that a case can be made for recognizing a right to define one’s sexual identity. A. Corbett is not Consistent with W v W In our view the W v W test developed by Charles J to deal with intersexual people is, in fact, inconsistent with the points that form the cornerstones of the approach in Corbett described above.142 Following W v W three key tenets in the Corbett judgment are open to challenge. 1. Sex cannot be determined at birth Charles J in W v W rejected the view that sex is necessarily fixed at birth and cannot subsequently be changed. By permitting secondary sexual characteristics and psychological factors to be taken into account Charles J accepted that factors not apparent at birth could determine the sex of an adult. Indeed had the W v W test been applied when the respondent was aged one, it is likely a judge would have found the child to be male, although by her teenage years her secondary sexual characteristics and psychological attachment would have altered the legal classification to female. This would not mean that the sex assignment at age one was incorrect; it is rather that with the new factors being taken into account the legal assignment of sex changed. The W v W test therefore recognizes that for intersexual people the legal definition of their sex is not necessarily fixed at birth and can change over time. But why should the law insist that sex is fixed at birth for some people but not for others? Once it is accepted that sex is not necessarily fixed at birth and can change over time the concept of sexual identity becomes a more fluid one. 2. The ability to engage in sexual intercourse should not be key to determining sex Ormrod J in Corbett saw the ability to have sexual intercourse as a key element in defining sex for the purposes of marriage.143 Ormrod J argued: ‘sex is clearly an essential determinant of the relationship called marriage because it is and always has been recognized as the union of man and woman.’144 So in Corbett deciding whether the respondent was a woman for the purpose of marriage a crucial question was whether she was capable of naturally ‘performing the essential role of a woman in marriage’.145 He found she was not.

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Charles J in W v W rejected this. He argued that the fact that a couple may or may not be able to consummate the marriage would not necessarily determine whether the parties are male and female. As he pointed out, there is much more to marriage and to individual identity than sexual intercourse. Once the fundamental importance attached to the capacity to engage in sexual intercourse is denied, it becomes harder to justify the fundamental importance attached to genitals in the Corbett definition of sex. We submit that Charles J was correct to depart from the centrality of sexual intercourse to marriage. Three reasons in particular are offered. (i) First, that sexual intercourse is not key to marriage. Companionship, intimacy and mutual support are of far more importance.146 This point is, in fact, recognized in the Matrimonial Causes Act 1973, which states that non-consummation of marriage renders a marriage voidable, rather than void. Therefore the lack of consummation of a marriage will only invalidate a marriage if either party to the marriage complains about it to the court. If both parties are happy with the absence of sexual intercourse the marriage is valid at law. (ii) When considering the definition of sex generally for the law the Corbett test is openly based on an assumption that heterosexual intercourse (‘ordinary and complete intercourse’147) is key to a person’s sexual identity. Ormrod J explained ‘where such a cavity has been constructed in a male, the difference between sexual intercourse using it, and anal or intra-crural intercourse is, in my judgement, to be measured in centimetres.’148 He clearly regarded anal intercourse as not ‘ordinary and complete’ and not sufficient for a valid marriage. This approach is reflected in the traditional medical approach with its focus on the size of a putative male’s penis and its ability to be used in sexual intercourse as key to the medical assignment of sex. Both approaches are based on a presumption of the normality of heterosexual penetrative sexual activity. The objection to this approach is not just that a homosexual person would not regard heterosexual intercourse as key to sexual fulfilment, but also many people find sexual fulfilment with non-penetrative sexual activities. To equate sex with sexual intercourse is to have a very limited understanding of sexual relations. If the law or medicine wishes to place importance on the ability of an individual to engage in sexual activity the issue should be about an individual’s capacity to find sexual fulfilment, not limiting that to any one particular form of sexual activity.149 (iii) The emphasis on sexual intercourse too easily leads to unacceptable assumptions about the sexual role expected of men and women. For example, some doctors working in the field have defined adequate intercourse for women as ‘successful genital penetration’.150 This can be seen as regarding the vagina as nothing more than a hole into which a penis can be placed. Whether or not the sexual activity was potentially pleasurable or fulfilling is not regarded as a relevant consideration. Indeed, as mentioned above, intersexual people who have not been operated upon have given evidence of sexual satisfaction despite the ‘abnormality of the genitals’,151 even when penetrative sex has not been possible.152

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3. It is wrong to limit sexual identity to physical characteristics Thorpe LJ in Bellinger has criticized the Corbett test in these terms: In my opinion the test that is confined to physiological factors, whilst attractive for its simplicity and apparent certainty of outcome, is manifestly incomplete. There is no logic or principle in excluding one vital component of the personality, the psyche.

In other words the Corbett approach to defining sex wrongly focuses on physical factors and downplays the person’s psychological factors. Indeed it is interesting that in other areas of the law the courts have been unwilling to accept a clear demarcation between the body and the mind.153 For example, in relation to liability in tort for psychological injuries in Bourhill v Young154 Lord Macmillan said: The crude view that the law should take cognisance only of physical injury resulting from actual impact has been discarded, and it is now well recognized that an action will lie for injury by shock sustained through the medium of the eye or the ear without direct contact. The distinction between mental shock and bodily injury was never a scientific one.

There is therefore strong legal authority for the view that the law should not seek to place a sharp divide between the body and the mind. Yet this is precisely what the Corbett test does by focusing on the physical characteristics and refusing to recognize the importance of psychological factors.155 The significance of emphasizing psychological factors would be that if an intersexual person regards themselves as neither male nor female, but intersex (or some other designation) the law should respect that. B. A Right to Classify One’s Own Sex A different way to consider the issue is to ask whether a person has the right to classify their own sexual identity.156 If a person wants to be classified as a man or a woman or intersex or some other description, should the law recognize their description of themselves? Such a right was recognized in the International Bill of Gender Rights, which was adopted in 1995 at the Fourth Annual International Conference on Transgender Law and Employment Policy in Houston, Texas:157 All human beings carry within themselves an ever-unfolding idea of who they are and what they are capable of achieving. The individual’s sense of self is not determined by chromosomal sex, genitalia, assigned birth sex, or initial gender role. Thus, the individual’s identity and capabilities cannot be circumscribed by what society deems to be masculine or feminine behaviour. It is fundamental that individuals have the right to define, and to redefine as their lives unfold, their own gender identities, without regard to chromosomal sex, genitalia, assigned birth sex, or initial gender role.

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Therefore, all human beings have the right to define their own gender identity regardless of chromosomal sex, genitalia, assigned birth sex, or initial gender role, and further, no individual shall be denied Human or Civil Rights by virtue of a self-defined gender identity which is not in accord with chromosomal sex, genitalia, assigned birth sex, or initial gender role.

If such a right were to become recognized in English and Welsh law this would most probably be through the Human Rights Act 1998. Is not sexual identity so key to an individual’s sense of personhood that it is a fundamental aspect of ‘private life’ which is protected under Article 8 of the European Convention on Human Rights, and hence by the Human Rights Act? The argument is as follows. Sexual identity is of enormous importance to many people. Wilchins writes: Sex! is a cultural command that all bodies understand and recognize themselves in a specific way, an identification of our bodies that we are forced to carry around and produce on demand. To participate in society, we must be sexed.158

For the state to compel a person to accept an assignation of sex which they do not recognize is a significant infringement of their liberty. We would therefore argue that an intersexual person should be entitled to live with the designation intersex, no sex, or an alternative label, if they so wish. Do the cases that have been decided by the European Court of Human Rights lend any support such a conclusion? In B v France159 it was accepted that it was an interference with a person’s right to respect for their private life under Article 8 not to allow them to change their identity documents so as to reflect their sexual identity.160 This would appear to give intersexuals a right to have identity documents reflect their current sexual identity, be that male, female, intersex, or some other identity. More significantly it recognizes that sexual identity is within the ambit of Article 8. Even if it was accepted that the right to define one’s sexual identity was an aspect of private life that was protected by Article 8(1), it would still need to be considered whether infringement of such a right was permitted under Article 8(2). Those who would deny a right to choose one’s sexual identity under the Convention would point to Sterjna v Finland161 which concerned a right to change one’s surname. The Court held: Despite the increased use of personal identity numbers in Finland and in other Contracting States, names retain a crucial role in the identification of people. Whilst recognizing that there may exist genuine reasons prompting an individual to wish to change his or her name, the Court accepts that legal restrictions on such a possibility may be justified in the public interest; for example in order to ensure accurate population registration or to safeguard the means of personal identification and of linking the bearers of a given name to a family.

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The significant point here is that the European Court did recognize under Article 8 a right to choose one’s own surname, but went on to hold that that right could be justifiably infringed by the state because of the state interests mentioned.162 Could the same point be made in relation to intersexual people? Even if they do have a right to define their own sexual identity this can be justifiably interfered with because of the bureaucratic benefits of classifying everyone as male or female. We suggest not and that Sterjna v Finland can be distinguished for three key reasons: (i) Although a name is an important aspect of personal identity, the legal classification of one’s sex is far more fundamental to one’s self-perception. To require a person to adopt a sexual classification which they reject is deeply demeaning; to far greater an extent than requiring a person to use a particular name in formal documentation. (ii) The number of people who, as intersexed individuals, may wish to change their sex or adopt the classification of intersex is far fewer than those who may seek to change a surname. The bureaucratic inconveniences would therefore be less. (iii) Refusing to recognize a person’s choice of sexual identity could be regarded as an infringement of Article 14. Article 14 states: The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

The phrase ‘such as’ indicates that the list of prohibited grounds of discrimination are not closed. Indeed Article 14 has recently been interpreted as including discrimination on the basis of sexual orientation.163 In P v S and Cornwall County Council the European Court of Justice accepted that discrimination against transsexual people constitutes sex discrimination. We can see no reason why discrimination on the basis of sexual identity cannot be similarly included within Article 14, either as included with the term sex, or an additional ground in its own right.164 Indeed the High Court in Colombia has recently acknowledged that intersexual people are a minority group deserving of protection against discrimination by the state.165 Opponents of a right to choose one’s sexual identity may argue that whether someone is male or female is ‘a fact’ and there should not be a right to claim a sex contrary to the facts. In relation to intersexual individuals, their sex is certainly not a medical ‘fact’. Where the medical answer to someone’s sexual identity is ‘don’t know’ or ‘not sure’ a very powerful argument can be made for recognizing an individual’s right to select their own sexual identity and this should include the right to select intersex or some specific condition if they so wish.166 Wiess167 uses a different response to this ‘fact’ argument. She is talking

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about transsexuals but the point is equally well made in relation to intersexuals: In such cases, the argument is that transsexual people are responsible for their own problem, because they are asking courts to deny reality, like a man who insists he is a donkey. According to this school of thought, the heteronormative standard identifies transsexuality as creating an incongruity between physical sex and psychological gender that must be resolved by the courts. This argument is very tempting to courts, because it appeals to the heteronormative standard. These courts fail to take into account the alternative possibility that the incongruity is created not by transsexuality, but by our society and the heteronormative standard itself.

C. The Rights of Children An alternative way of considering this issue is to examine it as one involving the rights of children.168 In the past few decades there has been increasing academic interest in children’s rights and to a limited extent the concept has been recognized by the law. Space prevents a thorough discussion of children’s rights here.169 One theory, which has received much academic acclaim, is that proposed by John Eekelaar. He describes his approach as ‘dynamic self-determinism’.170 In brief he recommends that as adults we consider how we wish we had been brought up as children. He suggests that most people would wish to be brought up in a way that would enable them when old enough to be able to decide how they would wish to live their lives. This means that decisions over children should be made with a view to leaving as many options as possible open to children once they reach adulthood. Other commentators promoting a similar view have referred to children’s right to an open future.171 Applying this approach to children’s rights in this context we would suggest that although there will be some cases where the child requires an operation at birth and this may (for example) involve removal of intra-abdominal testes to reduce the chances of malignancy; in other cases, if the operation is not medically required, it should be postponed until the child can make the decision for him or herself.172 Reference could be made to some small-scale research which indicated that when adults were asked if they would have wanted surgery had they been born with an intersex condition 93 per cent would not have wanted treatment unless their condition was life threatening.173 Another starting point for this argument is the right to bodily integrity. The law permits medical treatment only if a patient consents to it, unless the patient is incompetent to give consent.174 In the latter case, any treatment undertaken without consent must be necessary and in the best interests of the patient. Given the disputes over the correct medical approach to intersexual children we suggest that there is not clear evidence that the medical treatment is in the best interests of

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the patient, and it is certainly not established that the treatment is necessary.175 Indeed one study has found that surgery is often unsuccessful, if judged by the ability to engage in sexual intercourse. In one study (of 80 patients) only 65 per cent of women who had had surgery to create appropriate vaginal openings were found to have ‘satisfactory openings’ and of those only 77 per cent had had sexual intercourse.176 If it could be shown that children who do not have surgery and who are, therefore, left with ambiguous genitalia, suffer permanent psychological harm or social difficulties as a result, then surgery on their genitalia, at an early stage, could perhaps be justified. However the majority of the research to date suggests that such harm is not established177 Indeed as the ISNA has argued:178 Surgeons argue that genital surgeries must be performed on intersex children in order to save them from feeling different from other children, or being marginalized by society. But many children grow up with physical differences which may cause them to be marginalized by society, yet we do not advocate using plastic surgery to eliminate all physical differences. For instance, children of racial minorities are often marginalized, teased, and even subject to violence. Yet few would condone using non-consensual plastic surgery during infancy to eliminate racial characteristics.

D. Parents’ Rights Another response to this question would be to recognize that this is a complex question and it should be left to parents to decide whether a child should receive surgery. Again the law on parental rights and obligations is too large a topic for detailed analysis,179 but in brief in English and Welsh law parents will be left with an unfettered discretion to bring up children as they wish in relation to minor issues, but where the issue is of particular significance to the child the issue may be brought before the courts to ensure that the welfare of the child is protected. A useful analogy could be drawn with circumcision. At present whether or not a male child has a circumcision is left as a parental choice, which parents may exercise for religious, social or medical reasons. By contrast, in the UK and many western countries, circumcision of girls is illegal. Key to our discussion is why this is so. There are two particular reasons why female circumcision is prohibited, while male circumcision is not. First, because there are no medical benefits in the case of female circumcision, but in relation to male circumcision there may be medical benefits, although these are disputed. Second, female circumcision involves a greater intrusion into the individual’s lifestyle than male circumcision. In the case of male circumcision, although an adult male may not agree with his parents’ aesthetic choice for his body, it may be said by some to be a minor infringement of his bodily integrity. By contrast female circumcision may greatly intrude

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on an adult woman’s lifestyle by severely limiting the pleasure available in sexual activity. It could be argued that the lack of evidence of the benefits of surgery on intersexual children and the extent of the invasion of the body means that surgery on intersexual children is more analogous to female circumcision than male circumcision. Warne argues that the law should focus on the interests of the child, rather than the interests of parents, because a parent can receive support in other ways.180 The Colombian High Court has argued that the treatment of intersexual children should not be left to parents as in this area parents are particularly likely to put too much weight on their own interests (eg embarrassment at the child’s condition), as opposed to the interests of the children.181 Their worries are certainly justified, especially in some parts of the world, where parents may have strong preferences for boys, rather than girls.182 Despite such arguments for downplaying the interests of parents, as ever in family law, the limited power of the law must be accepted. If the law were to go down the route of requiring parents to raise their children as intersex until the child was old enough to decide their sexual identity for themselves there would be grave difficulties of enforcement. Would an intersex child be removed from their parents because the parents insisted on bringing up the child as one sex or another? 8.

D E V E L OP I N G A N EW A P P R OA C H

Both Corbett and W v W demonstrate a reluctance to depart from the assumption that everyone is either male or female. It should be noted that Ormrod J was aware of the difficulties in assigning everyone as male or female, but insisted that the assumption was correct. Extrajudicially he wrote:183 The law, which is essentially an artefact, is a system of regulations which depends upon precise definitions . . . the law is obliged to classify its material into exclusive categories; it is, therefore, a binary system designed to produce conclusions of the yes or no type. Biological phenomena however, cannot be reduced to exclusive categories so that medicine often cannot give Yes or No answers . . . [P]eople are not either tall or short, they are taller or shorter or about average. This fundamental conflict lies at the root of all relations between medicine and law.

We reject this analysis, although it is interesting to note that, while he accepts that the binary classification does not match reality, he argues that we have to use it to make sense of the law.184 It must be questioned whether it is correct that people should be required to fit to the convenience of legal categories rather than the law reflecting the complexities and realities for individuals. Indeed it is interesting that Ormrod J refers to people as ‘materials’ with which the legal system must manage. Greenberg rejects Ormrod J’s emphasis on the efficiency of

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legal classifications, by relying on therapeutic jurisprudence. She explains that:185 [Therapeutic jurisprudence] views legal rules as social forces that often produces therapeutic or anti-therapeutic consequences. Therapeutic jurisprudence explores the ways in which the law can achieve therapeutic consequences that are consistent with principles of justice and other legal values. The goal of therapeutic jurisprudence is to reduce the law’s anti-therapeutic effects, without subordinating important justice values such as due process.186

Using this approach, she argues that intersexuals should, for therapeutic reasons, not be classified as male or female. A full analysis of therapeutic jurisprudence is not possible here and there are difficulties with it. Nevertheless the notion is important in emphasizing the importance of considering the psychological impact on individuals of the legal classification imposed upon them. This is particularly true in cases such as intersexuals where the legal classification of male or female may, in fact, be inaccurate. As discussed above this ‘binary sex paradigm’187 has increasingly little support amongst medical experts in the field of intersexuals. First, as already mentioned, up to four per cent of people cannot at birth be labelled male or female. For many intersexed people it is only by having surgery performed that they can be designed so as to appear to fall into the category of male and female. Second, there is increasing acceptance of the view among medical practitioners that surgery should not be performed at birth on an intersexed child but be delayed until a later point. The significance of this is that much medical practice now accepts that in the early years the child will be of ‘unknown sex’ or intersex until either the child clearly behaves in accordance with a particular gender or is able to choose a sexual identity for him or her self. Many experts are happy to accept that the child may legitimately decide to live as an intersexual. Indeed recent research has indicated the popularity amongst some adult intersexuals of describing themselves as intersex, rather than male or female.188 The legal insistence that everyone must be either male or female is no longer consistent with medical practice. So if we are not rigidly to require every person to be placed in the male or female box what alternatives are there? 1. Recognizing a third (or fourth or fifth) sex? One possibility would be for the law and society to recognize that there are three sexes: male, female or intersex.189 The only legal reform that would then be required would be to state how the law on marriage, sexual offences, and other areas apply to intersexual people. In our view it would not be satisfactory simply to recognize three sexes. As noted above the term ‘intersexual’ in fact covers a wide range of condi-

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tions; it would be quite misleading to group all of these into one heading. Indeed support groups have been set up by individuals suffering from particular intersex conditions.190 An individual may indeed deny any classification based on sex, claiming to be transgendered or androgynous. Once one accepts the argument that the male-female dyad is a social construction, which unreasonably restricts people’s sexual identity into one of two sexes, it becomes hard to deny that restricting people to three identities is open to identical objections. 2. Recognizing a scale of sexual identity Rather than requiring people to be classified as male or female we suggest that it would be preferable to utilize a scale of sexual identity with individuals being placed at a point somewhere along the scale.191 This has been described by Rothblatt as ‘sexual continuism.’192 This vision ‘posits that humanity is composed of a continuous blend of sexual identity, far beyond any simplistic male or female categorization’.193 She states: [l]abeling people as male or female, upon birth, exalts biology over sociology. Instead, the new feminist principles inspire us to permit all people to selfidentify their sexual status along a broad continuum of possibilities and to create such cultures of gender as human ingenuity may develop.194

Some argue that this approach is misguided.195 Allen writes: [T]he majority of the population is also heterosexual, and what is heterosexuality but a sexual attraction toward the opposite sex? Male and female are inescapable biological and sexual referents. To expect the mainstream to radically reinterpret itself for the sake of transgenderist ideology is the sort of conceit typical of a member of any minority.196

We do not find Allen’s opposition convincing for two main reasons. First, the suggestion that male and female are ‘inescapable sexual referents’ is untrue. As shown above it is not possible to point to any one biological factor as being inevitably consistent with male or female, and notions of what is inherently male or female have changed over time and between societies. It is important to remember that despite a few differences, in fact men and women have very similar bodies.197 Those differences that are frequently stressed are not as key as often supposed: only some women have the capacity to become pregnant, some women do not have ovaries; some women do not menstruate; some men lactate;198 not all men produce sperm. Second, we find the argument that the ‘mainstream’ (the majority of who would clearly identify themselves as male or female)199 should not be required to radically reinterpret itself unconvincing and unsatisfactory. The acceptance of a continuum approach does not require an indi-

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vidual to reject their own sexual identity. It is likely that many will stick to the traditional definition of clearly male or female. In any event as outlined above up to 4 per cent of people can be described as intersexual. This is not a tiny minority who are seeking to challenge important social categories, but a significant section of the population. Kogan opposes the sexual continuum approach on different grounds: Rothblatt’s vision purports to offer an alternative to a dimorphic vision of sex/ gender. But does it really? Although she adopts the conceptual structure of a continuum to describe sex, her theory reinforces a dimorphic view of sex by placing the categories ‘male’ and ‘female’ at the endpoints of the continuum. Under such a view, individuals are inevitably defined as more or less male, or more or less female. The determining concepts remain bipolar.200

He prefers the recognition of a third sex to the continuum approach. There is force in his argument but it would not be difficult to express the continuum approach in a way which would overcome his concerns. If we accept that the male and female sexes are not fixed boxes but fluid categories, then it is possible to accept that individuals could have different forms of sexual identity (or indeed none) for different purposes. Kogan’s point about maleness and femaleness remaining the key reference points is a good one, but that is only likely to be so until different ways of expressing sexual identity are developed. There is still a major concern with the continuum approach here. Around the world most governments and legal systems claim to seek to promote equality between the sexes. Debates within the feminist movement have revealed that promotion of equality does not necessarily require the law to ignore or diminish the differences between men and women.201 But rather the law should seek to ensure that inequality should not result from the differences. If male and femaleness were abolished as legal categories this might be thought to inhibit such policies. We suggest not. Moves to ensure that the care for children affords proper social, economic and political recognition, that pregnant workers are protected, that those doing the same jobs are granted equal pay can, of course, be taken without the need to refer explicitly to definitions of sex. If the sexual continuism approach is adopted this would have wider implications for the legal system than simply accepting the existence of a third sex. In practice it would become impossible for the law to place any legal significance on sexual differences, because it would recognize that people may have a wide range of sexual identities, indeed perhaps having different identities for different purposes. Instead of talking of men and women the law will treat each individual as a person.202 As already mentioned, in fact the law (formally) rarely draws a distinction on the basis of sex, so this proposal would not require a major revision of the law.

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We have sought to challenge the assumption that every person can be placed in the category of either male or female. Up to four per cent of children born can be classified as intersex. Traditionally medicine has sought to assign such children to either the male or female sex and then by surgery to design their bodies to conform to the outward appearance expected of that sex. The law until recently has followed this approach and accepted that a person’s sex should be determined as either male or female at birth. This can be seen as an aspect of what Foucault has described as ‘a society of normalization’;203 that everyone should be required to fit into a norm. However, both these legal and medical assumptions have been challenged. This article has outlined the research and pressures which led to a change in medical practice amongst many of the experts in the field. It is no longer assumed that an intersexual person can be correctly assigned to one sex or the other. Indeed many advocate not performing surgery until the child is old enough to decide their sexual identity for themselves. Further, it is becoming increasingly acceptable and common for an individual to choose to live as an intersexed individual. Recently a judgement by Charles J indicates a willingness by the law to accept that the true sex of an intersexual individual may not be determined until later life. However the judgment does nothing to challenge the assumption that a person is either male or female. We suggest that as there is increasing understanding and acceptance of intersexual individuals the sharp distinction between male and female can no longer exist. It is no longer possible to define people as male or female and the law must cease to use sex as a legal category. The law should instead recognize a wide range of sexual identities. This will not lead to forcing people into a bland androgyny but will recognize the complexity of every individual. N OT E S 1

Gray (1992). Section 2, Births and Deaths Registration Act 1953 requires registration of birth within 42 days. On registration parents are required to declare the sex of the child. 3 Butler (1993). 4 The leading work on intersexuals from a social science viewpoint is Fausto-Sterling (2000). A thorough historical review of the historical treatment of intersexuals can be found in Herd (1996). 5 Valdes (1994). 6 Chanter (1999). 7 Delphy (1984) at 144. 8 Kimmell (2000). 9 Gatens (1996, Routledge); Jackson and Scott (2001). 10 For a stimulating discussion on whether it is possible to define what a woman is without reference to gender or sex see Moi (2001). 11 Jackson and Scott (2001). See also Herdt (1994). 12 See also Greenberg (1999). 13 Edgerton (1964), Williams (1986). 2

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Herdt (1996). Although it should be noted that some religious teaching suggests that the distinction of humans into men and women is key to the created order and God’s purposes for the world: Evangelical Alliance (2001). 16 Vaiman and Pailhoux (2000). 17 Yordam et al (2001). The karyotype is the configuration of the chromosomes of the body. It is denoted by the number of chromosomes and the configuration of the sex chromosomes, so 45XO/ 46XY means both clones of cells of the subject possess the normal autosomes, or non-sex chromosomes, but whilst one clone has the normal male karyotype, the other clone has only one X-chromosome. 18 Ohno (1967); Speed (1986). 19 Klinefelter et al (1942). Other forms of karyotypic abnormalities include 47XXX (Jacobs et al (1959)) or even the 48XXXY (Carr et al). 20 Schiebel et al (1997). 21 Although in much writing on social sciences the term hermaphradite has fallen into disuse, here it is used in its technical sense referring to a specific medical condition. 22 Kusz et al (1999); Sarafogolou and Ostrer (2000). 23 Cases of the 45XO/46X,idic(Yq) karyotype have been documented (M. Teraoka et al (1998)). 45XO/46X,idic(Yq) moasic possess a clone of 45XO cells, and another clone of 46XY cells, where the Y-chromosome is a mutant with two centromeres, the q-arm of the chromosome is repeated but the p-arm of the chromosome is missing (normal chromosomes have one centromere, flanked on two sides by the p-arm and the q-arm). This is a case of mosaicism combined with gene translocations. 24 McElreavey and Fellous (1999). 25 Simpson and Rajkovic (1999). 26 Muscatelli et al (1994). 27 Bardoni et al (1994). 28 Davies et al (1999). Mutation of the SOX9 gene can lead to sex reversal in XY-individuals (Wagner (1994)). Other autosomal genes involved in male sex determination are the SF-1 (Achermann et al (1999)). For discussion of the DAX-1 see Goodfellow and Camerino (1999) and for SOX9 see Wagner et al (1994). In females mutations the follicle-stimulating hormone receptor gene on chromosome 2 can lead to gonadal dysgenesis (Aittomaki et al (1996)). 29 Ito et al (1993). 30 Gottlieb et al (1998); Gottlieb et al (1999). 31 The use of this terminology although used by medics is (not surprisingly) not favoured by many intersexual people themselves. 32 Belville et al (1999). 33 Collett-Solberg (2001). 34 Simpson (1999). 35 Wilcox et al (1970). 36 Kinnison et al (2000). 37 Markandeya (1998); Watson et al (1997); Pailhoux et al (1997); Cole (1997); Robinson et al (1996). 38 Darwin (1859). 39 Dunn (1996). 40 Dreger (1998) Ch 1. 41 Or even five sexes as suggested by Fausto-Sterling (1993). She has since rejected her own analysis in Fausto-Sterling (2000). 42 Kessler (1998) documents how intersexual conditions have been seen as deformities. 43 Dreger (2000). 44 Blackless (2000). 45 Blackless (2000). 46 Fausto-Sterling (2000). 47 Greenberg (1999); Herdt (1996). 48 [2001] 3 FCR 1. 49 Barlow (2001). 50 Zhou et al (1995); Kruijver et al (2000); Di Ceglie (1998); GIRES (2001). 51 Breedlove (1997). 52 [2001] FamCA 1074. 53 At para 272. 15

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For example Raymond (1994) and Nye (1998). Beh and Diamond (2000) provides an excellent summary of the development of medical practice in this area. 56 Hird and Germon (2000). 57 Fausto-Sterling (1993). 58 Hird and Germon (2000). 59 Money (1968). The reception to his work is discussed in Kipnis and Diamond (1998). 60 See also, Diamond and Sigmundson (1997). 61 Money (1968). 62 Money and Ehrhardt (1972). 63 Beh and Diamond (2000). 64 Money (1968) at 62. 65 American Academy of Pediatrics (1996) at 590. 66 Diamond and Singmundson (1997). 67 Colapinto (2000). 68 Reilly and Woodhouse (1989). Later research found similar results: Bin-Abbas et al (1999). 69 Diamond and Sigmundson (1997); Lee (2001). A useful summary of this research is found in Colapinto (2000). 70 Slijper et al (1998). 71 Interestingly, more of the patients with gender identity disorder were girls with ambiguous genitalia due to congenital adrenal hyperplasia or other disorders. However, many of these individuals with gender identity disorder also suffered from other neuro-psychiatric problems such as neurosis or mental retardation. It is therefore not certain whether the gender identity disorder is part of a whole spectrum of the individual’s psychology, or whether it is related to the intersexual condition. 72 Fausto-Sterling (2000). 73 In some cases it is not possible to make an individual ‘normal’: Kipnis and Diamond (1998). 74 Fausto-Sterling (2000). 75 Chase (1998). 76 Money (1998), at 314–19. 77 Griffin and Wilson (1992). 78 Money (1968) at 66. 79 Kipinis and Diamond (2001). 80 For example Catlin and Crawford (1994); McGillivray (1991) at 366; Newman et al (1992) at 651. 81 Hird and Germon (2000). 82 Meyers-Seifer and Charest (1992). There is much doubt over the medical benefits of such an operation: Kipnis and Diamond (1998). 83 Although the approach still has its supporters: Krstic et al (2000) stress the difficulties facing men who were unable to achieve erections or ejaculate. 84 Griffin and Wilson (1992). 85 Deger (1998). 86 Deger (1998). 87 Lee (2001); Bassam Bin-Abbas et al (1999) at 582. 88 The sample of 500 men was taken for men hospitalized for conditions not related to hypospadias (a condition related to the opening of the penis): Fichtner et al (1995). 89 Dreger (2000). Also, Caroline Cossey, the male to female transsexual who featured in Cossey v UK [1992] 2 FLR 492 has been able to follow a highly successful career as a model. 90 Fausto-Sterling (2000) at 8. 91 This is but one aspect of a wider debate over what constitutes illness. See, for example, Riessman (1998). 92 Deger (1998). 93 Information is provided at www.natfi.org. 94 This is not to say that there are not medical conditions connected with intersexuality that may require treatment. For example, hypospadias in some forms of congenital adrenal hyperplasia. 95 Including Money himself (Money (1998) at 314–19; Glassberg (1999); and Glassberg (1998)). 96 Diamond and Sigmundson (2001). 97 Phornphutkul et al (2000). 98 Slijper et al (1998). 99 Such an approach has been taken in the Colombian cases which we will refer to later. 55

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Bellinger v Bellinger [2001] 3 FCR 1. Diamond and Sigmundson (2001). Although most clinicians propose adhering to the chromosomal sex: Slijper et al (1998). 103 Warne (1998). 104 Editors of British Medical Journal (2001). 105 Abramsky et al (2001). 106 Glassberg (1998); Glassberg (1999). 107 Sripathi et al (1997). 108 Natarajan (1996). 109 Groveman (1996). 110 There is evidence that osteoporosis is linked to some intersex conditions: Vanderschueren and Vandenput (2000). 111 These principles can be found in other disciplines. For example, in dealing with archaeological artefacts, archaeologists follow two rules: (1) minimal intervention of the buildings and other artefacts and (2) if reconstruction is desired, the reconstruction method should be as reversible as possible. 112 The problem recognized in Bracton, On the laws and Customs of England, 31 and E Coke, The First part of the Institutes of the Laws of England, 8 a Instituts 1812. 113 Similarly in the United States the Defense of Marriage Act (Pub. L. No. 104–109, § 2(a), 110 Stat 2419 (1996) (codified as amended at 28 USCA.§ 1738C (West Supp. 1997)) does not provide a definition of male and female. 114 [2001] Fam 111, [2001] 1 FLR 324. The case is discussed in Herring and Chau (2001) and Barlow (2001). 115 [2001] FCR 1. 116 At 373. 117 Matrimonial Causes Act 1973, Section 11. 118 [1971] p 83. 119 [1971] p 83 at 104. 120 In Re Kevin (Validity of Marriage) [2001] FamCA 1074 Chisholm J powerfully criticizes Ormrod J’s assumption that psychological sex is not relevant to the legal definition of sex. 121 For example, In Re Ladrach 513 NE 2d 828 (Ohio Prob Ct 1987); B v B 355 NYS 2d 712 in USA; Lim Ying v Hiok Kian Ming Eric [1991] SLR 184 in Singapore; W v W [1976] 2 SALR 308 in South Africa. 122 Gottlieb (1999). 123 At 363. 124 Bellinger v Bellinger [2001] 3 FCR 1. 125 Sexual Offences Act 1959, s. 1(1); Sexual Offences Act, s 32. 126 [1983] 1 WLR 361. 127 This approach has also been taken by the Australian courts: see, for example, Harris and McGuinness (1988) 17 NSWLR 158. 128 Unreported, Reading Crown Court (RCC No. T960397), 28 October 1996. 129 B v France [1993] 2 FCR 145. 130 Home Office (2000) at para 3.6.3. 131 (1979) 35 FLR 340. 132 The case has recently been criticized in the Australian courts by Chisholm J in Re Kevin (Validity of Marriage) [2001] FamCA 1074. 133 293 NYS 2d 834 (NY Civ Ct 1968). 134 At 837. The theory that there was a third sex was regarded as a ‘far out theory’. 135 See n 113, above. 136 Although the website for the pressure group Press for Change (www.pfc.org.uk) has a useful list of countries which have passed legislation to protect the rights of transsexual people. 137 140 N. J. Super. 77, 355 A 2d 204, 205 (1976). 138 See also In the Estate of Gardiner (Unreported, No. 85,030, 11 May 2001), Court of Appeals of the State of Kansas. 139 [1991] 1 NZLR 603. 140 [1995] 1 NZLR 603 at 607. 141 [2001] FamCA 1074. 142 For earlier criticism of Corbett, see Dewar (1985). 143 We stress that we are discussing the legal definition of marriage. There may be theological 101 102

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reasons why a particular religion may wish to require that the parties to a marriage should be of the opposite sex. 144 At 48. 145 At 48. 146 This has been acknowledged in Re Watson (dec’d) [1999] 1 FLR 878 and Re Kevin (Validity of Marriage) [2001] FamCA 1074. 147 At 49. 148 At 49. 149 Support for such a view can be found in Thorpe LJ’s dissenting judgment in Bellinger v Bellinger [2001] 3 FCR 1. 150 Kupfer et al (1992) at 328. 151 Diamond and Sigmundson (1997) at 1049. 152 Faust-Sterling (2000) at 95. 153 In R v Ireland and R v Burstow [1998] AC 147 the House of Lords was willing to define the statutory terms actual bodily harm and grievous bodily harm as including psychological harms. This was in large part based on scientific evidence that a sharp distinction cannot be drawn between the body and the mind. 154 [1943] AC 92, at 103. 155 The approach would, of course, mean that transsexuals should be permitted to ‘change’ the legal definition of their sex. 156 Writings supporting such a right include: Weiss (2001) and Greenberg (2000). 157 Frye (2000). 158 Wilchins (1997) at 56. 159 B v France at para 51–63. 160 Although the decision accepted the position in the UK in relation to birth certificates on the basis that they were not identity documents, but records of historical facts. This causes significant problems for transsexuals (Home Office 2000), but not intersexuals (Finn (1998)). 161 24 EHRR 195. 162 Burghartz v Switzerland 18 EHRR 101 both Articles 8 and 14 were infringed. 163 Da Silva Mouta v Portugal [2001] 1 FCR 653. 164 The Sex Discrimination (Gender Reassignment) Regulations 1999 seeks to deal with discrimination against transsexuals in the employment context. 165 The Constitutional Court of Colombia recently issued two decisions (SU-337/99, May 12, 1999 and T-551/99, Aug 2, 1999). The cases are discussed in Greeberg and Chase (2001). There is, however, an American case taking the view that discrimination on the basis of a person being an intersexual was not sex discrimination, Wood v C G Studios 660 F Supp 176 (E.D. Pa. 1987), although this took a very narrow view of what amounted to sex discrimination. 166 Moreno (1998) is an example of an individual who would rather be described as neither male or nor female. 167 Weiss (2001). 168 See, for example, United Nations Convention on the Rights of the Child. 169 See, for example, Herring (2000a). 170 Eekelaar (1994). 171 Beh and Diamond (2000). 172 Fausto-Sterling (2000), at 78 argues that surgery should be performed only if it is necessary to save the individual’s life or significantly improve their physical well-being. 173 Kessler (1998). 174 St George’s Health Care NHS Trust v S [1998] 3 All ER 673. 175 Beh and Diamond (2000). 176 Mulaikal et al (1987). 177 Colapinto (2000) gives a useful summary of the evidence to date and suggests that providing ‘psycho-sexual counselling’ provides a more appropriate point than surgery. 178 ISNA (1998). 179 Herring (2001b) ch 7. 180 Warne (1998). 181 The Constitutional Court of Colombia recently issued two decisions (SU-337/99, May 12, 1999 and T-551/99, August 2, 1999) which significantly restrict the ability of parents and doctors to perform surgery on children with atypical genitals. 182 Sripathi et al (1997). 183 Ormrod (1972) at 78.

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184

See Potter and Summers (2001) for a discussion of a fictionalist account of sex, where fictions can be regarded as significant as ‘realities’. 185 Greenberg (1999) at 295 (footnotes omitted). 186 See also Winick (1996). 187 Greenberg (1999) at 275. 188 Schober (2001). 189 Kogan (1997) emphasizes that some cultures (eg Native American, Indian, and Sambian cultures) have recognized a third sex. 190 For example The Androgen Insensitivity Support Group; the Congenital Adrenal Hyperplasia Group. 191 See, for example, Dobac (1999). 192 Rothblatt (1995). 193 At 102. 194 At 13. 195 No legal case has adopted this approach. The possibility of adopting such an approach was raised but not resolved by Justice Chisholm in the Australian case Re Kevin (Validity of Marriage of Transsexual) [2001] FamCA 1074. 196 J.J. Allen, The Man in the Red Velvet Dress, at 133, quoted in Kogan (1997). 197 Fausto-Sterling (2000). 198 Jaggar (1983). 199 Smith (1971). 200 Kogan (1997) at 1250. 201 For example Herring (2001b) at 11–13. 202 Coombs (1998). 203 Foucalt (1980) at 107.

R E F E RE N C E S

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